Citation Nr: 21000772 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 11-30 469 DATE: January 6, 2021 ORDER Entitlement to service connection for a right foot disability is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s right foot disability is related to his military service. CONCLUSION OF LAW The criteria for service connection for a right foot disability have not been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1969 to March 1971, including service in the Republic of Vietnam. He also served in the Army National Guard from April 1980 to September 1996. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2011, the Veteran testified before a Decision Review Officer (DRO). The Veteran initially requested a videoconference Board hearing; however, in January 2014, the Veteran withdrew his hearing request. The Board remanded the appeal in September 2014, April 2017, January 2018, and November 2019. On the most recent remand, the RO was asked to obtain an addendum to the July 2018 VA examination discussing the Veteran’s in-service fall and lay testimony regarding his injury. A new VA examination was obtained in January 2020, with an addendum to that examination provided in August 2020. The Board finds that the RO has substantially complied with its remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to Service Connection for Right Foot Disability To establish service connection, the Veteran must show evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. §3.303(a). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 1335-37 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. §3.102. The Veteran’s VA examinations and medical records show that he has been diagnosed with multiple disabilities of the right foot, including metatarsus adductus, idiopathic neuropathy, pes cavus/clawfoot, metatarsus primus varus/hallux valgus deformity, osteoarthritic changes, and spurring of the Achilles insertion. In addition, the Veteran’s right foot pain, and its impact on his ability to sleep, has been repeatedly documented in his VA medical records since 2005; when pain is severe enough to cause a functional impairment, that alone is sufficient to constitute a disability for VA purposes. Saunders v. Wilkie, 886 F.3d 1356 (2018). The Board therefore finds that the first requirement for service connection is met. The Board also finds that the Veteran suffered an in-service injury. The Veteran’s account of falling from a bosun’s chair and injuring his foot in October 1970 is corroborated by his service treatment records (STRs). Since the Veteran has met the first two requirements for service connection, the remaining question is whether the Veteran’s current disability was caused by this in-service incident. The Board finds that it was not. Consideration is given to the Veteran’s testimony that his claimed right foot condition was incurred in or caused by his active military service. But while lay persons are competent to testify about some medical issues (for example, the Veteran is competent to testify about the severity of pain in his foot,) the etiology of the Veteran’s foot disability is a complex medical question which requires specialized expertise or training to determine. Jandreau v. Nicholson, 492. F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The record contains opinions from four VA examinations, plus one addendum opinion, all of which conclude that the Veteran’s right foot disability was less likely than not caused or aggravated by his in-service fall. The most recent of these examinations was conducted in January 2020, with an addendum opinion provided in August 2020. The 2020 VA opinions were based on a review of the Veteran’s VA and private treatment records, past VA examinations (including an in-person examination in 2018), military records, and the Veteran’s lay testimony. The 2020 VA opinions found that the Veteran’s in-service foot injury was acute, and less likely than not linked to his current disabilities. The examiner noted that there is no record of continued foot pain during service after the Veteran’s initial injury; foot conditions were not reported upon the Veteran’s separation from the Navy, upon his entrance or separation from the Army National Guard, or during any other medical examination while the Veteran served or for years thereafter. An absence of evidence is not, by itself, enough to conclude that a disability was not caused by an in-service injury; however, the examiner went on to explain that the Veteran’s diagnosed foot disabilities are all either congenital defects or residuals thereof. The examiner opined that the Veteran’s foot pain is more likely than not attributable to a combination of these congenital defects and low back radiculopathy diagnosed in November 2011. Congenital disabilities are not eligible for service connection, see 38 CFR § 4.9, and there is nothing in the record showing that the Veteran’s back was injured during service. There are two pieces of medical evidence in the record suggesting a nexus between the Veteran’s in-service fall and his current foot pain. The first comes from a progress note in August 2013. The original note is not part of the record, despite VA’s attempts to locate it. See Subsequent Development Letter, May 19, 2017. See also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (“appellant was adequately on notice that more was required of him if there was to be a successful search for the necessary evidence”). However, two references to the note can be found in the Veteran’s medical records, both from a nurse practitioner in August 2013. The first is: [P]rogress note from Cheshire medical center by [physician] dated 8/8/13 Seeing pt for his foot pain and idiopathic peripheral neuropathy and nerve injury from fall in the service. The second is: I did receive a progress note from [physician]. She felt you have nerve injury from your fall, but some of the paresthesia could be from your borderline diabetes-that is sometimes the first thing that shows up. The labwork she did was to rule out any other pathology, which was all normal. Neither of these comments gives any indication how the examiner concluded that the Veteran’s foot pain was related to his in-service fall. For a medical nexus opinion to be given weight by the Board, it must contain clinical data or some other rationale supporting its conclusions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The other potentially positive evidence comes from a private medical examination by an M.D. in November 2011, which in relevant part says: I had an in depth discussion with this patient regarding the fact that his pain is neurogenic in origin. There is nothing orthopedic that is causing his foot discomfort. It is not unreasonable to assume the problem is radicular. Based on his history and descriptions of his post injury symptoms and the findings today in this office, there is a clear correlation. He had temporary drop foot and now demonstrates right sided muscle weakness, hyperesthetic nerve pain distribution and equino adducto varus contracture deformity. This indicative of L3, L4, L5, and SI involvement or common peroneal distribution. Once again, while the Board acknowledges that the conclusion is favorable to the Veteran, the examiner did not provide adequate reasons and bases to support it. The opinion uses vague language like “it is not unreasonable to assume,” making it difficult to determine the examiner’s degree of certainty in their conclusions. See Bloom v. West, 12 Vet. App. 185, 187 (1999). It is also unclear how the examiner reconciled the conclusion that “there is a correlation” between the Veteran’s current foot pain and his in-service foot injury with the earlier finding that “there is nothing orthopedic that is causing his foot discomfort,” a finding which seems to align with the 2020 VA medical opinions. Unlike the VA examiner, the private examiner here does not give any indication that he has reviewed the Veteran’s past medical records; they seem to be relying solely on the Veteran’s description of his history. These deficiencies in the private medical opinions force the Board to assign greater weight to the January 2020 VA opinion and August 2020 addendum. The preponderance of the evidence is therefore against a finding of entitlement to service connection for a right foot disability. The benefit-of-the-doubt doctrine does not apply, as the evidence is not in equipoise, and the Veteran’s claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.A. Sundquist The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.